Beruflich Dokumente
Kultur Dokumente
3d 684
This cause came on to be heard on the transcript of record and was argued by
counsel for appellant Aybar and for the government, and was submitted by
counsel for Hernandez.
On November 12, 1993, a jury found Aybar and Hernandez guilty. Following
their convictions, both Aybar and Hernandez moved, pursuant to Fed.R.Crim.P.
33, to set aside the verdict, claiming that they had received ineffective
assistance of trial counsel. At sentencing, on October 19, 1995, the district
court denied Aybar and Hernandez' motions as untimely and meritless.
On appeal, Aybar and Hernandez again argue that their trial attorneys were
constitutionally ineffective. In Strickland v. Washington, 466 U.S. 668 (1984),
Aybar argues, inter alia, that he received ineffective assistance because his
attorney failed to file a motion to suppress certain incriminating wiretap
evidence. In order for Aybar to be successful on this claim, he must show that
the suppression motion would have been meritorious if filed. See United States
v. Matos, 905 F.2d 30, 32 (2d Cir.1990). Aybar argues that a suppression
motion would have been successful because the government violated 18 U.S.C.
2518, which requires that wiretap recordings be sealed, by allowing Marino
Rodriguez to listen to the tapes during the course of the government's
investigation.
Hernandez claims, inter alia, that he received ineffective assistance because his
attorney failed to introduce documents that allegedly would have shown that
Hernandez' recorded conversations with Martinez related to cars and not drugs,
as the government contended at trial. However, the government at trial
conceded that Hernandez and Martinez were involved in a car business together
and that many of their tape-recorded conversations related to various cars that
they were buying and selling. Thus, the introduction of further evidence that
Hernandez was involved in a car business with Martinez would not have proven
anything that had not been conceded already by the government. Accordingly,
we do not think that the conduct of Hernandez' attorney fell below an "objective
standard of reasonableness."
10
Both Aybar and Hernandez claim that the district court erred by improperly
attributing to them quantities of cocaine for the purpose of determining relevant
conduct for sentencing. To determine a defendant's relevant conduct for
purposes of sentencing, a defendant will be held responsible not only for his
own conduct but also for "reasonably foreseeable acts undertaken in
furtherance of any jointly undertaken activity." United States v. Joyner, 924
F.2d 454, 458 (2d Cir.1991). The sentencing court need not find that the
defendant "had actual knowledge of the exact quantity of narcotics involved in
the conspiracy; it is sufficient if he could reasonably have foreseen the quantity
involved." United States v. Negron, 967 F.2d 68, 72 (2d Cir.1992).
11
Aybar claims that, at sentencing, he improperly was held accountable for the
conspiracy to import and distribute 250 kilograms of cocaine. However, we
think that the district court properly relied on the government's wiretap
evidence and Martinez' drug records in determining that a scheme to import and
distribute 250 kilograms of cocaine existed, and that Aybar was a coconspirator in the scheme. Thus, it was appropriate for the district court to
sentence Aybar for the amount of drugs involved in this scheme.
12
Hernandez claims that the district court improperly held him accountable for
over five kilograms of cocaine when determining his sentence. While
Hernandez concedes that the government presented sufficient proof that he was
accountable for four and one-half kilograms of cocaine, he claims that the one
and one-half kilograms of cocaine seized from a co-conspirator's apartment
were not "reasonably foreseeable" to him. We disagree. The government's
wiretap evidence not only demonstrates that the cocaine discovered in the coconspirator's apartment was foreseeable to Hernandez, but that Hernandez
actually knew that the cocaine was there. Accordingly, the district court
properly held Hernandez accountable for over five kilograms of cocaine.
13